Strasbourg, 12 February 2004

Dear Mr B.,

On 12 March 2003, you lodged a complaint with the European Ombudsman against both the European Parliament and the European Commission, on behalf of Mr Chung Tak Lam. Your complaint involved two separate allegations: (i) that the European Parliament did not properly handle the petition you had lodged with that institution on 22 February 2000, and (ii) that the European Commission did not reply to the letter you had sent to that institution on 31 March 2000 in connection with the subject-matter of your petition, or to subsequent reminders.

As regards your first allegation, the Ombudsman declared it inadmissible on 6 May 2003 on the grounds that it did not concern maladministration, and therefore failed to meet the requirements set out in Article 2 (2) of my Statute. I explained in my letter to you that I consider decisions of the Committee on Petitions of the European Parliament as part of the political work of the institution, and therefore not within my remit.

I considered your second allegation admissible and, accordingly, I requested an opinion on it from the European Commission. On 6 May 2003, I forwarded the complaint to the President of the European Commission. On 22 May 2003, you sent me additional information regarding your exchanges with the Committee on Petitions of the European Parliament. The Commission sent its opinion on 18 September 2003. I forwarded it to you with an invitation to make observations. On 20 October 2003, you submitted your observations.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the facts of the case are, in summary, as follows:

On 22 February 2000, the complainant submitted a petition to the European Parliament concerning the outbreak of some environment-related diseases in the UK, and the inadequate measures taken in response by the British authorities. On 5 October 2000, the Chairman of the Committee on Petitions decided that only the aspect of the petition concerning allegations of damage to public health was to be considered admissible. The petition was then registered under file number 169/2000. As regards the complainant's allegations concerning discrimination by the British tax authorities and the courts, the Committee on Petitions declared it inadmissible. In the complainant's view, the Committee on Petitions had wrongly assessed his petition. Furthermore, he argued that the Committee's request for an opinion to the Commission's DG Environment should have been addressed instead to DG Health and Consumer, in view of the nature of the problem.

The complainant wrote to the Commission on 31 March 2000, stating his disagreement with the decision taken by the Committee on Petitions of the European Parliament. Despite having sent a number of reminders to the Commission services, the complainant did not receive any reply.

In his complaint to the Ombudsman, the complainant alleged, in summary, that the European Commission had not replied to a letter or to the ensuing reminders he had sent on 31 March 2000 in connection with the subject-matter of petition 169/2000, which he had lodged with the European Parliament.

THE INQUIRY

The European Commission's opinion

The Commission's opinion is, in summary, as follows:

As regards the alleged failure to reply to the letter sent by the complainant, the Commission noted that its services had indeed received a letter from the complainant dated 31 March 2000 which did not resemble, however, the one he referred to in his complaint to the Ombudsman. The latter had not been received by its services. The Commission regretted that no reply had been sent to the complainant due to an unfortunate oversight.

The Commission explained that the complainant's letter expressed concerns similar to the ones included in petition 169/2000. Its services responsible for environmental issues analysed whether the situation constituted a possible infringement of Community environmental legislation by the UK, and replied to the request made by the European Parliament with all necessary information. As a result of its inquiry, it appeared that the relevant EC legislation had not entered into force and was therefore not applicable at the time of the alleged industrial operation. The Commission referred in particular to Council Directive 97/11/EC amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (14 March 1999); Council Directive 96/62/EC on ambient air quality assessment and management (21 May 1998); and Council Directive 96/61/EC concerning integrated pollution prevention and control (31 October 2007 for existing industrial installations). With regard to Directive 96/62/EC, it is further noteworthy that this instrument, focussing on limit values and thresholds for selected pollutants in the ambient air, does not provide a basis for installation-oriented pollution control.

The Commission described the conclusions of its services regarding the application of Directive 85/337/EEC (environmental impact assessment). The Directive entered into force on 3 July 1988. Both the cellulose paint-spraying factory and the garden pottery factory could therefore, in terms of timing, be concerned by its provisions. Neither installation, however, falls into the scope of obligatory assessment as defined in Annex 1. Both installations could be considered as potentially covered by Annex II, leaving Member States a margin of discretion in deciding if an environmental impact assessment is necessary or not. The information submitted by the petitioner was insufficient to establish with certainty whether the provisions of this Directive were applicable or not.

The Commission's assessment of the problem was transmitted to the European Parliament in a communication dated 9 March 2001. In his submission dated 15 November 2000, transmitted by the Committee on Petitions to the Commission on 20 February 2001, the petitioner did not come forward with any new element that would have allowed for a re-assessment of the situation.

The complainant's observations

In his observations on the Commission's opinion, the complainant noted that the Commission had accepted its failure to reply to his letter, and therefore that it had admitted the existence of a wrongdoing.

The complainant then made a number of additional observations concerning the subject-matter of the petition he had submitted to the European Parliament, the response given by its Committee on Petitions and the replies given by the European Commission to the requests made by the Parliament in connection with the above petition.

The complainant referred to a number of aspects included in his petition which the Commission had not acknowledged, such as the allegedly unlawful actions undertaken by the responsible local authorities, or his concerns regarding the breach of environmental, health and human rights. He also took the view that, in assessing the legal aspects of the case, the Commission's interpretation of existing EC directives was inappropriate. In support of his position, the complainant quoted a number of rules from Directive 96/62/EC (ambient air quality assessment and management), Directive 85/337/EEC (environmental impact assessment), and Directive 90/313/EEC (freedom of access to information on the environment), among others.

The Ombudsman considers that the complainant’s observations concerning the replies given by the European Commission to his petition raise issues that are not within the scope of the original complaint. The Ombudsman suggests that the most useful course of action for the complainant would be to address the Commission directly about these matters. If he does not receive a satisfactory reply within a reasonable time, the complainant could consider making a new complaint to the Ombudsman.

THE DECISION

1 Alleged failure to reply to the complainant’s letter of 31 March 2000

1.1 The complainant alleges that the European Commission did not reply to a letter or to the ensuing reminders he had sent on 31 March 2000 in connection with the subject-matter of petition 169/2000, which he had lodged with the Committee on Petitions of the European Parliament. The petition concerned the outbreak of some environment-related diseases in the UK, and the inadequate measures taken in response by the British authorities.

1.2 The Commission explains that its services had received a letter from the complainant dated 31 March 2000. This letter, however, was different from the one referred to in the complaint to the Ombudsman, which the institution had not received. The Commission regrets that, due to an unfortunate oversight, no reply was sent to the complainant.

The Commission notes, however, that the complainant's letter expressed concerns similar to the ones included in petition No 169/2000. Its services responsible for environmental issues analysed the possibility of an infringement of Community environmental legislation by the UK and replied to the request made by the European Parliament, with all necessary information. As a result of its inquiry, it appeared that most of the relevant EC legislation had not entered into force and was therefore not applicable at the time that the alleged facts took place. The assessment carried out by the Commission was transmitted to the European Parliament in a communication dated 9 March 2001.

1.3 The Ombudsman notes that, according to the Commission's Code of good administrative behaviour(1), a reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter by the responsible Commission department. If a reply cannot be sent within the deadline mentioned above, the member of staff responsible should send a holding reply, indicating a date by which the addressee may expect to be sent a reply.

By not replying to the letter sent by the complainant on 31 March 2000, the Commission failed to comply with the obligations set out in its own Code of good administrative behaviour. This failure constitutes an instance of maladministration.

The Ombudsman will therefore address a critical remark to the Commission concerning this case.

2 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

By not replying to the letter sent by the complainant on 31 March 2000, the Commission failed to comply with the obligations set out in its own Code of good administrative behaviour. This failure constitutes an instance of maladministration.

In view of the fact that the Commission has acknowledged its failure to reply to the complainant's letter and thereby accepted that the complaint to the Ombudsman was justified, a critical remark by the Ombudsman appears to be sufficient satisfaction for the complainant.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2000 L 308/26 at 308/32.